Obama’s USPTO choice supports patent reform

The Obama administration's choice to head the US Patent and Trademark Office, …

Last Thursday, the Obama administration finally named its choice to head the Patent and Trademark Office: David J. Kappos, who is currently serving as IBM's assistant general counsel. Kappos has a long history in the field of intellectual property law, and has been an advocate of patent reforms, having testified in favor of a reform bill before the Senate Judiciary Committee. Normally, a public record of that sort provides plenty of opportunities for people to identify problems with a candidate, but, so far at least, response to Kappos' nomination has been generally positive.

The White House's announcement of the nomination highlights the fact that Kappos has about as much inside knowledge of the functioning of the US patent system as anyone alive. With engineering and law degrees, Kappos wound up managing IBM's intellectual property portfolio—for 16 straight years, the company has been the leading recipient of US patents. IBM's strategic decisions, which include a heavy focus on consulting and technology integration and its embrace of open source, have undoubtedly made that position a challenging one in recent years.

That history certainly influenced his testimony before Congress, during which he spoke of the need for patent reform. In advocating for a bill under consideration by the Senate, Kappos focused on a number of issues, including the fact that patents and intellectual property can sometimes limit the sorts of collaborations and open standards that IBM has embraced.

He also highlighted the need for improving the quality of patents issued, citing a survey of professionals that indicated half of them considered US patents to be low quality. In his view, the ambiguity in many of the patents that are granted has been a major factor in the skyrocketing rate of patent litigation, which he sees largely as a drain on company resources.

To fix matters, Kappos advocated the adoption of a formal process that would allow the patents to undergo a review one year after granting, a process that would allow others in the field to submit comments about the intellectual content. He would also like to see different standards of royalty-based damages adopted in cases of patent infringement.

These are two measures that have been near and dear to the high-tech industry for some time, so it's no surprise that the nomination was praised by the Coalition for Patent Fairness, which counts many of the companies in that industry among its membership.

Similarly, Microsoft's deputy general counsel issued a statement in which he said, "We applaud his selection." It's also not surprising that the Chair of the Senate Judiciary Committee, Patrick Leahy of Vermont, praised the choice of Kappos, given that Leahy is both a Democrat and an advocate of patent reform.

What might be surprising is that Kappos is also receiving support from industries that haven't been thrilled with the idea of significant change to the patent system, such as the biomedical industry. Bio, a biotech industry organization, issued a statement in which it commended Obama for his choice. "We believe Mr. Kappos will bring a thoughtful perspective to the Department of Commerce and the USPTO," the statement said, while urging the Senate to act quickly on his nomination.

Quick action would appear to be needed. As noted in Microsoft's blog post on the nomination, the backlog of patent applications has tripled over the last decade, with a corresponding growth in the amount of time necessary for a decision on a patent to be issued. Adding an extra layer of review, as favored by Kappos, would invariably increase the delays, even if it were aided by innovative systems such as peer-to-patent.

Even if some groups disagree with the specific reforms Kappos has proposed, they're anxious to see someone with demonstrated competence and experience in charge of the USPTO, someone who at least looks likely to make the whole creaking machinery of the office start chugging a little faster.